Judge Refuses To Free Harry Stewart While Appeal Is Pending
By Mark Charalambous, Spokesman, Fatherhood Coalition, Massachusetts News
December 1Judge Joseph Welch of Quincy District Court refused on November 5 to allow
Harry Stewart to remain free while he is appealing his six-month jail sentence, even
though Stewarts only "crime" was getting out of his car to open a heavy,
outside door for his five-year-old son to enter the mothers apartment
The Judge apparently believes that anyone who "violates" an Order of the Court should pay the full consequences even if the "violation" of his Order is technical or trivial.
The son had to go to the bathroom and he had sat in the car for over ten minutes with his father waiting for the mother to respond to the honking of the horn in the car.
Stewart is appealing the conviction, and a court-appointed attorney is at work on its preparation. Because the appeals process is slow, Stewarts six-month sentence will be over before a high court gets to hear it. His trial attorney, Phyllis Field, filed a Motion for a Stay of Execution of Stewarts sentence pending his appeal, which was denied by Judge Welch. However, the appeals attorney will be filing the same motion to the appellate court as part of the appeal process. Though an appeal generally takes a year or two, Attorney Field expects the court to move quickly on the Stay of Execution.
With the Stewart case receiving national media attention, including coverage by syndicated columnists Kathleen Parker and Cathy Young, it is evidently a hot potato, leaving prosecutorial apologists groping to provide an explanation for their actions. Meanwhile, Harry Stewart, guilty of helping his son return home to use the bathroom, suffers in jail. For her part, Attorney Field is grateful to have played a role, if it results in a raising of awareness of the problems with the abuse prevention regime. "Ive worked hard to bring Harrys case to the forefront to show there is abuse in the system," she told Massachusetts News.
The Fatherhood Coalition, the Massachusetts based fathers rights organization, is
attempting to salvage something positive from Stewarts plight. Under the "Free
Harry" rubric they are attempting to inject fathers rights into the
nations consciousness via a resonance with
the "Free Huey" slogan of the sixties, black power movement. Just as the Black
Panthers marshaled support against what they labeled "institutional racism" with
the attempted martyring of Huey Newton, the Coalition maintains that today the legal
system has institutionalized the persecution of fathers through the various entities
loosely classified as the "divorce system."
The Fatherhood Coalition asserts that what is presently happening to fathers is nothing less than a concerted "war on fatherhood." With almost 40% of the nations children not living with their dads, they claim that it is incumbent on the Coalitions enemies to disprove their assertion.
In September 1997, Stewart, father of two boys, appeared incognito on an ABC News story
on battered men. His voice cracking with emotion, Stewart described how he had lived in
mortal fear of his wife for twelve years and feared waking up with his throat cut. At the
time, Stewart was estranged from his wife and in a contentious divorce.
Stewart eventually left the marriage and the marital home because of the abuse, which he says included death threats and physical attacks with a knife and kitchen cookware. Within five months Stewart was slapped with a 209A "No-Contact Abuse Protection Order" and listed on the states Domestic Abuse Registry.
Because the states apparatus for combating domestic violence is predisposed to female victims, Stewarts violent wife was able to wrap herself in the abuse flag and further harm Stewart with the assistance of Massachusetts courts.
Stewarts wife secured "abused woman" status by simply saying that she was in fear of him and that he had abused her. Armed with the protection order, she was able to manufacture several violations of the no-contact provisions, which served to put her solidly in the drivers seat of their divorce. Facing several charges, Stewart was eventually jailed August 17 this year for one of the spurious charges.
Stewart, a Christian Full Gospel minister, once ran a youth ministry in Weymouth where
he formerly resided. One of his 209A orders prevented him from entering the town of
Weymouth, which effectively ended his ministry. The various charges of 209A violations
against Stewart include:
Opening the outer door to his ex-wifes housing complex door to allow his 5-year old son to ring the bell for entry, upon returning him after a scheduled visitation.
Picking up his children for visitation on foot when his car was broken the restraining order required him to remain in his car at visitation pick-up/drop-offs.
Picking up his children when visitation was temporarily suspended during a court investigation. (According to Stewart, miscommunication by court officials led him to believe he was in compliance with the court requirements for resumption of visitation.)
Getting out of his car at his childrens school to pick them up for a scheduled visitation; the restraining order required him to remain in his car when returning his children to school after visitation.
These earlier charges had already been either dropped or dismissed:
Exiting his car to help his son with a package during a visitation exchange in the summer of 1997.
Exiting his car to pick up his son, who had fallen down while running to Stewarts car for a visitation pick-up.
After many court delays, Stewart was eventually convicted in a jury trial for the first of the charges listed above on June 21, the day after Fathers Day. District Attorney Cathy Cappelli dropped the remaining three charges via a plea of "nolle process" on November 1. Stewarts attorney, Phyllis Field, attributes the DAs action to a lack of evidence, but others suspect a political motive. The Coalition believes the media attention to the Stewart case has embarrassed the local practitioners in the domestic violence regime, who, fearing further damage to their credibility by continued media exposure, have prudently decided to pursue no further action against Stewart.
Stewart has been supported all along by the Fatherhood Coalition. It has been a fixture inside and outside the Quincy District Court at all of Stewarts appearances leading up to his eventual incarceration and it has held several candlelight vigils outside the Dedham prison. Holding picket signs critical of the domestic violence industry and the court they disdainfully regard as the "belly of the beast," they have succeeded in drawing national attention to the abuse of 209A restraining orders in Massachusetts. The Coalition has been mounting a grass roots "Free Harry" publicity campaign. An 8- x 5- ft. banner has been displayed over highways and at a Red Sox playoff game outside Fenway Park. "Free Harry" posters are also popping up across the state.
John Flaherty, the Coalitions co-chairman, questions the apparent arbitrariness of 209A violation prosecutions. At his trial in August, Stewart did not deny violating the order. Yes, Stewart admitted, he did leave his car. After waiting 10 minutes in his car for his ex-wife to acknowledge his honking, he couldnt wait any longer because his son needed to go to the bathroom. Unable to handle the heavy outer door of the apartment complex by himself, his son needed help getting into the vestibule so he could ring the intercom and return home.
But Flaherty maintains this violation which Stewart freely admitted is no different than the other charges that the DA has decided to drop. Two of the three charges were for Stewart being outside of his car. On one occasion, his son had fallen down and was crying. On another, he needed help getting out of the car because he had several packages.
Following Stewarts sentencing, local press reported that Quincy probation officer
Carole Bambrick held that Stewart "does not believe violating a restraining order is
a form of abuse." At Stewarts trial, prosecuting Assistant District Attorney
Kathy Cappelli made her case that Stewart was in violation of a court order, regardless of
the offense, and that should be sufficient to convict him.
Judge Joseph Welch, the presiding judge at Stewarts trial, in apparent agreement with Cappelli, even instructed the jury that "there is no abuse in this case." To return a guilty verdict they need only to determine if Stewart violated the court order by getting out of his car.
Chapter 209A of the General Laws, "Abuse Prevention," lists three components for the definition of "domestic abuse" required to obtain a protection order. Though leaving ones car is not one of them, once an order has been established, any violation of the no-contact provisions are punishable by up to two-and-a-half years in jail and a $10,000 fine. By claiming that she was "in fear" of Stewart, his wife was able to secure a protection order that restricted Stewarts behavior during visitation exchanges.
When 209A orders are secured to gain temporary custody of children, the "victim" usually includes the children under the umbrella of protection by checking a box on the request form. The "abusive" father is then restricted from any contact with not only his wife, but also his own children. The father must then have the 209A modified in a Probate and Family Court to carve out exceptions that allow for some kind of communication, and hopefully contact, with his children.
After the trial, Cappelli asked for two-years probation pending Stewarts
completion of a state-certified "batterers intervention program," with the
added incentive of a six-month prison sentence if Stewart violates probation. Stewart was
unwilling to enter the Quincy Common Purpose batterers intervention program because
clients are required to sign an eight-page "Guidelines and Agreement for Group
Participation" document which includes a confession of violence. The document
includes the following statements:
"I understand that my acts of physical, emotional, and verbal violence are a means of controlling the victims actions, thoughts and feelings. I accept responsibility for my violence and for my coercive control without reservation.
"I acknowledge the negative effects of my abuse on my relationship, my partner, my children, my friends, myself. I will be accountable for these effects to my partner and others.
"I acknowledge the root of my violence and the cultural and social context in which I used violence against my partner."
Stewart offered to enter the program if he could modify the admission document to strike these self-incriminating statements, but this wasnt allowed. On August 17 at a sentencing hearing, Judge Mark Coven gave Stewart several opportunities to comply with Judge Welchs judgment. But Stewart refused to sign what he considered a false confession, and so was ordered to the Norfolk County House of Correction to begin serving the six-month sentence.
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